Western Union Telegraph Company v. State

• Decision Date: 18 March 1907
• Citation: 101 S.W. 745,82 Ark. 302
• Parties: WESTERN UNION TELEGRAPH COMPANY v. STATE
• Court: Arkansas Supreme Court

101 S.W. 745

82 Ark. 302

WESTERN UNION TELEGRAPH COMPANY v. STATE

Supreme Court of Arkansas

March 18, 1907

Appeal from Pulaski Circuit Court, Second Division; Edward W Winfield, Judge; reversed and dismissed.

Judgment reversed and dismissed.

Rose Hemingway, Cantrell & Loughborough, for appellant.

Lewis Rhoton and De E. Bradshaw, for appellee.

OPINION

MCCULLOCH, J.

This is an action instituted on behalf of the State of Arkansas as plaintiff against appellant, a corporation organized under the laws of the State of New York and doing business in this State as a telegraph company, to recover a balance of $ 19,404 fees alleged to be due to the State for filing with the Secretary of State a copy of its articles of incorporation.

Appellant filed with the Secretary of State a copy of its articles of incorporation.

Appellant filed with the Secretary of State on June 23, 1905, a copy of its articles of incorporation and paid a fee of $ 90, but it is shown by the pleadings in this action that appellant's capital stock was $ 97,370,000, and it is claimed on behalf of the State that a fee of $ 19,494 should have been paid which would be $ 30 for the first $ 25,000 of the capital stock and $ 5 for each additional $ 25,000 thereof. The court sustained a general demurrer to the answer, rendered judgment in favor of the plaintiff for the amount asked in the complaint upon the defendant's failure to plead further, and the defendant appealed.

The course of legislation in this State prescribing the terms upon which foreign corporations may do business here is as follows: In 1887 a statute was enacted providing that, before any foreign corporation should begin to carry on any business in the State, it should, by a certificate under the hand of the president filed in the office of the Secretary of State, designate a citizen of the State as agent upon whom process against it might be served and also stating its principal place of business in the State. Act April 4, 1887.

On February 16, 1899, another statute was passed, section one of which is substantially the same as the former statute just referred to, and section two, as amended by a later act passed during the same session on May 8, 1899, reads as follows:

"Section 2. Every company or corporation incorporated under the laws of any other State, Territory or country, now or hereafter doing business in this State, shall file in the office of the Secretary of State of this State a copy of its charter, or articles of incorporation, or association, or, in case such company or corporation is incorporated merely by a certificate, then a copy of its certificate of incorporation, duly authenticated and certified by the proper authority. The Secretary of State shall cause all such charters, articles of incorporation, or association, so filed, to be duly recorded in a book kept for that purpose. And such corporation shall be required to pay into the treasury of the State incorporating and other fees equal to those required of similar corporations formed with and under the laws of this State. Upon compliance with the above provisions by said corporation, a copy of such charter, or articles of incorporation, or certificate so filed, properly certified under the seal of his office, and a copy of such charter, or articles of incorporation, or certificate, certified to by the Secretary of State, shall be taken by all the courts of this State as evidence that the said corporation has complied with the provisions of this act, and is entitled to all the rights and benefits therein conferred. And such corporation shall be entitled to all the rights and privileges and subject to all the penalties conferred and imposed by the laws of this State upon similar corporations formed and existing under the laws of this State; provided, that the provisions of this act requiring copy of original articles of incorporation or charter, and certificate naming an agent, and to pay certain fees therefor, shall not apply to railroad companies which have heretofore built their lines of railroad into or through this State; provided, further, that the provisions of this act are not intended and shall not apply to 'drummers' or traveling salesmen soliciting business in this State for foreign corporations which are entirely nonresident."

Section three of this act imposed a fine of not less than $ 1,000 upon any foreign corporation which should fail or refuse to comply with the terms of the statute; and section four allowed corporations then doing business in the State ninety days from the passage of the act within which to comply with its terms.

The General Assembly passed another statute on April 23, 1901, entitled "An act to regulate foreign corporations other than railway, express, telegraph, palace car and insurance corporations." It reads as follows:

"Section 1. Every corporation formed in any other State, Territory, country or county, before it shall be authorized or permitted to establish a business in this State, or to continue business therein, if already established, shall, by its certificate, under the hand of the president and seal of such company or corporation, file in the office of the Secretary of this State a copy of its articles of incorporation, if not already filed therein, and also with the clerk of the county in which it has opened all office for the purpose of transacting business, and in addition thereto shall file with the Secretary of State and the clerk of the county in which it has opened an office, or commenced business, within six (6) months after the establishment of such office or the beginning of such business, a statement showing the proportional part of its capital stock which it has in the operation of its business, both in the State and in the county in which it is doing business.

"Section 2. That no corporation formed or organized in another State, Territory, country or county shall be authorized or entitled to make any contract in this State until it has complied with the provisions of the foregoing section, nor shall it be authorized to sue on any contract made in this State until the provisions of section one (1) of this act are complied with; provided, that corporations now doing business in this State may have sixty (60) days to comply with this act.

"Section 3. That the act shall not apply to railway, express, telegraph, palace car and insurance corporations, and shall take effect and be in force from and after its passage."

An act passed May 6, 1905, fixes the fees for filing articles of incorporation by foreign and domestic corporations at the sum of $ 30 for all corporations the capital stock of which is $ 25,000 or under, and an additional sum of $ 5 for each additional $ 25,000 of the capital stock.

It will be observed that the act of 1901 re-enacts, substantially, all of section two of the act of 1899, so far as concerns the requirements imposed upon foreign corporations, and, in addition thereto, requires such corporation to file a copy of its articles of incorporation with the clerk of the county in which it has opened an office for the purpose of transacting business, and also to file with the Secretary of State and county clerk a statement showing the proportional part of its capital stock which it has in use in the State and county.

The controlling question in this case is, then, whether or not section two of the act of 1899 is impliedly...